IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 194 of 2010()
1. CHRIST CHURCH, PALAYAM, TRIVANDRUM
... Petitioner
Vs
1. CICIL LOCKE, S/O.CLARENCE LOCKE
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.P.C.HARIDAS
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/08/2010
O R D E R
THOMAS P.JOSEPH, J.
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C.R.P.No.194 OF 2010
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Dated this the 3rd day of August, 2010
ORDER
This revision arise from the order of Land Reforms Appellate
Authority, Alappuzha (for short ‘the Appellate Authority’) in
A.A.No.137 of 2003 confirming the order of assignment of
landlords’ right passed by the Land Tribunal,
Thiruvananthapuram (for short the Tribunal) in S.M.No.75 of
2000. While the appeal was pending appellant (Cicilia Locke) died
and thereon petitioner representing the Christ Church committee,
Palayam, Trivandrum claiming to be the beneficiary under a Will
executed by the original owner of the property-James Mc’ Donald
Sawyer sought impleadment in the appeal by filing
I.A.No.88/2004. That application was opposed by the claimant in
the Land Tribunal (Cicil Locke). The Appellate Authority dismissed
the appeal holding that the Will is not probated, is not proved as
provided under Section 68 of the Indian Evidence Act and that
petitioner as a beneficiary cannot assert right over the estate of
the deceased. The application and the appeal were dismissed.
That order is under challenge in this revision. Learned counsel for
C.R.P.No.194 OF 2010 2
petitioner contends that the Will was executed by the said James
on 17.10.1972, it was deposited with the District Registrar and
after death of said James on 21.12.1972 the Will was opened and
registered as document No.36 of 1973. Later, as per order of
District Court, Thiruvananthapuram in OP (LA) No.43 of 1973
probate was granted for the said Will. According to the learned
counsel, one of the two executors mentioned in the Will expired
and the other, one Jacob has given it in writing to the petitioner
that he is not interested in acting as executor and hence, the only
person left is the Church Committee which is the beneficiary
under the Will. Hence, the Church Committee (petitioner) is
entitled to come on record in the appeal and contest correctness
of order passed by the Tribunal. Learned counsel for the
respondent (Cicil Locke), claimant before Land Tribunal contends
that the Will is hit by Section 118 of the Indian Succession Act
(for short ‘the Act’). It is also contended that petitioner cannot
claim any right in the property in view of Section 211 and 216 of
the said Act unless and until probate granted by the learned
District Judge is cancelled or revoked and probate is obtained
with right for petitioner as a beneficiary.
2. So far as contention that the Will in question is invalid is
C.R.P.No.194 OF 2010 3
concerned, reference is made to Section 118 of the Act. But, that
contention cannot stand in view of the decisions in Preman v.
Union of India (1998(2) KLT 1004), John Vallamattom v.
Union of India (2003(3) KLT 66) and Kathrikutty v. Pappoo
(2005 (3) KLT 63). In these decisions, Section 118 of the Act has
been held to be violative of Article 14 of the Constitution of India
and hence has been struck down. Section 118 no more exist in
the statute book.
3. Going by the Will in question and it is also not disputed
petitioner is a beneficiary under it. No doubt respondent has a
contention that there is no vesting of the estate with the
petitioner even as per the terms of the said Will, but there is only
a right to take, the sale proceeds of the property. According to
the learned counsel for respondent, a life interest was created in
favour of deceased appellant (before the Appellate Authority).
Yet another contention is that one of the executors named in the
Will is still alive and hence petitioner cannot claim benefit under
the Will. In response it is contended by learned counsel for
petitioner that the said executor, Jacob has given in writing by
letter dated 20.1.2006 to the petitioner that he is not interested
to continue as executor. These questions are not required to be
C.R.P.No.194 OF 2010 4
decided in these proceedings since no evidence in that way was
produced before Appellate Authority. Appellate Authority has
merely stated that in view of Section 211 of the Act, petitioner
cannot claim benefit under the Will. But, it is seen that the
Appellate Authority has not even permitted the petitioner to come
on record as additional appellant. I.A.No.88 of 2004 filed by the
petitioner for impleadment has been dismissed by the Appellate
Authority. Having regard to the facts and circumstances of the
case, I am inclined to think that Appellate Authority ought to
have allowed I.A.88 of 2004 and impleaded petitioner as
additional appellant consequent to the death of original appellant.
Other questions such as whether petitioner is entitled to succeed
to the estate of the testator on any ground as contended by the
learned counsel for the respondent are matters which the
Appellate Authority has to decide on the evidence placed before
that authority.
4. Having heard counsel on both sides, I am persuaded to
think that I.A.88 of 2004 is required to be allowed. Consequently,
the order of the Appellate Authority dismissing the appeal is also
liable to be set aside. I make it clear that it will be open to the
parties to adduce evidence before the Appellate Authority and
C.R.P.No.194 OF 2010 5
raise all their contentions as to their entitlement to the S.M.
schedule property.
Resultantly, the revision petition is allowed in the following
lines:
a) Order on I.A. 88 of 2004 is set aside. That application
will stand allowed. Petitioner is impleaded as additional appellant
No.2 in the appeal before the Appellate Authority. Impleadment
in the cause title of memorandum of appeal shall be carried out
by the office of the Appellate Authority.
b) Order dated 27.8.2008 in A.A.No.137 of 2003 of the
Appellate Authority confirming the order of the Land Tribunal is
set aside and that matter is remitted to the Appellate Authority
for fresh decision as provided under law and in the light of the
observations made above. The Appellate Authority shall issue
notice to the petitioner and respondent before scheduling the
appeal for hearing.
THOMAS P.JOSEPH, JUDGE
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